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March 18, 1971

UNITED STATES of America ex rel. James McNEIL
Alfred T. RUNDLE, Superintendent

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

This is a petition for a writ of habeas corpus by James McNeil (hereafter, the relator), a state prisoner, who attacks the validity of his conviction and incarceration on concurrent sentences of from two to ten years imposed upon Bills Nos. 222 (burglary, larceny and receiving stolen goods) and 226 (aggravated robbery), September Sessions, 1966. Relator was found guilty by a judge sitting without a jury. After the trial judge denied post-trial motions, relator appealed to the Pennsylvania Superior Court where the conviction was affirmed. See Commonwealth v. McNeil, 212 Pa. Super. 702, 239 A. 2d 475 (1968). Thereafter, relator petitioned the Pennsylvania Supreme Court for Allocatur, which petition was denied per curiam on June 5, 1968. In each of these petitions, relator was represented by counsel.

 After having satisfied ourselves that relator has exhausted his state remedies, we appointed counsel to represent the relator and held a hearing. Since we are dealing here with convictions upon two separate offenses which occurred at different points in time, and since different questions are raised concerning the two convictions, we shall discuss them separately.

 BILL NO. 222

 Bill No. 222, charging burglary, larceny and receiving stolen goods, relates to an offense committed on June 13, 1966, when a number of Timex watches were taken from Sneidman's Pharmacy, 451 South 56th Street in Philadelphia. Relator attacks his conviction on this Bill by alleging that evidence consisting of an empty Timex watch carton and a hinge from a watch carton was taken from the trunk of his automobile pursuant to a warrantless search while the auto was in the custody of the police, and was improperly introduced into evidence at his trial.

 Shortly after midnight, on June 13, 1966, Wanda Gray, who lived across the street from Sneidman's Pharmacy, saw a man, with a large stone in his hand, standing near the pharmacy window. After shouting "Don't throw it!", she called the police. Upon hearing a window crash, she looked out and saw a man come out of the pharmacy with a box and walk down the street to a point where she saw the trunk of a red car open. Moments later the police arrived and the burglar fled through an alley. The proprietor of the pharmacy noticed that his front door was smashed in, and that a Timex watch showcase, with 20 watches in it, was missing. Mrs. Gray pointed out to Police Officer Scarbrough the red car whose trunk she saw open. Since this was the only red car on the block, Officer Scarbrough guarded it until Detective Gruver arrived. After speaking with officers on the scene and with Mrs. Gray at approximately 12:50 A.M., Detective Gruver observed some small slips of paper and a price tag for a Timex watch right behind the red car and another slip of paper on the car's rear bumper; that the door on the right side was open; that, when he looked in, he saw on the sun visor the title to the motor vehicle and a brown pass case which contained an owner's registration card. Both documents bore the relator's name and address. Detective Gruver did not then attempt to open the trunk of the car, but instead had the car moved to the police garage. *fn1" After failing to locate the relator at the address given on the vehicle registration cards, Detective Gruver returned to his district, only to discover that the red car had been removed from the unattended police garage, leaving behind a side strip of chrome metal. At approximately 3:00 A.M., Officer Scarbrough located the missing auto parked several blocks away and, upon searching in the vicinity of the car found sixteen empty watch cases on a fire escape at the second floor of a nearby home. The car was then returned to the police garage where it was observed that the chrome strip was missing and that the right side was scraped. To prevent a possible reoccurrence, the car was rendered mechanically inoperative.

 At that time, approximately 3:30 A.M., Detective Gruver attempted, unsuccessfully, to locate a magistrate who could issue a search warrant authorizing him to open the trunk of the car. At trial, Detective Gruver testified as to his past experience that he could not reliably anticipate the arrival of a magistrate at his precinct even as soon as 9:00 A.M., which was five hours away; that on many occasions in the past he had been unsuccessful in attempts to reach magistrates at their homes by telephone at early morning hours; that on this occasion he made a telephone call to the Police Administration Building where a magistrate normally could be located, but that he was informed that none were available. He further testified that, since at that hour no police personnel were available to guard the automobile, which had already disappeared once when unguarded, he then forced the trunk open with a crowbar and found therein one Timex wrist watch case and a hinge to another. He noted that the case contained a price tag similar to the tags found earlier that morning behind the car near the scene of the crime. These items were introduced into evidence at the trial. A warrant for the relator's arrest was issued, but he was not apprehended until his arrest for charges made in Bill No. 226, infra.

 The second warrantless search complained of took place at police headquarters when Detective Gruver pried open the trunk of the car with a crowbar. Here, too, we find that under the circumstances, the warrantless search of the contents of the car trunk was constitutionally permissible. It should be recalled that the trunk was not opened until after the following had occurred: the car had been identified to the police as a likely depository of the stolen goods; the robber had not yet been apprehended; the car was stolen out of the unguarded police garage but was later relocated and returned; in the vicinity where the car was relocated, sixteen empty Timex watch cartons were found. Clearly, under these facts, the police had probable cause to search the trunk of the car for the fruits of the robbery. The only question, then, is whether it was proper to search without first obtaining a warrant.

 Prior to the Supreme Court's recent opinion in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), it had generally been held that even where probable cause existed, a warrantless search of a car was forbidden unless made incident to a valid arrest or justified by exceptional circumstances, such as a significant possibility of removal or destruction of the object of the search. See generally Smith v. United States, 118 U.S. App. D.C. 235, 335 F.2d 270, 273 (1964), and cases cited therein. Chambers, supra, however, relaxed this standard by holding that where, as here, the searching officer has probable cause to search the car for evidence of the crime, it is reasonable under the Fourth Amendment to immediately search the car without a warrant. See Chambers v. Maroney, 399 U.S. at 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419. Even under the more rigorous pre- Chambers standard, we believe that the warrantless search can withstand constitutional attack because: (1) the searching officer had probable cause to search the car for evidence of the crime; and (2) the presence of the following exigent circumstances: (a) the suspect was still at large; (b) the unsuccessful attempts to contact a magistrate; (c) unavailability of police personnel to guard the car which had already been once removed from police "custody"; (d) at the time of recovering the car which had been removed from the police garage, evidence was found near the car, which fact would reasonably lead the police to believe that attempts were, and may further be, made to destroy or conceal the evidence; and, (e) a magistrate would not be available for at least 4 or 5 hours.

 Since we have found the searches of relator's car to have been legal, we conclude that the trial court did not err in refusing to suppress as evidence the fruits of the searches.

 BILL NO. 226

 This Bill charged aggravated robbery and related to an offense which occurred on July 16, 1966, when on Lee Parker was assaulted and had his wrist watch stolen. It is relator's contention that it was prejudicial error for the trial court not to suppress as evidence a wrist watch which was taken from the relator's pocket at the time of his arrest.

 The circumstances leading to relator's arrest may be summarized as follows: Lee Parker testified that on July 15, 1966, at approximately 11:00 P.M., after stopping at a bar for a drink, he was walking on Larchwood Avenue in Philadelphia towards his home, when two or three persons assaulted and brutally beat him. Parker testified that he could not make a positive identification due to darkness and dizziness at the time. At trial a gold watch was exhibited which ...

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